The nonsuit seems to have been granted on the theory that a citizen, who crosses a railway track at its intersection with a public highway, is an absolute insurer of his own safety against the criminal negligence of a wrong-doer. It was sustained at the General Term on the equally untenable *Page 632 theory that the plaintiff, who looked in each direction before crossing and saw no engine approaching, was guilty of culpable negligence in not continuing to look both ways simultaneously. In either aspect, the decision was plainly erroneous.
The plaintiff owed no duty to the defendant beyond the exercise of ordinary care. The proof is clear, not only that he was free from negligence, but that he exercised more circumspection and care than most men would, under similar circumstances. He was on the east side of St. Joseph street, proceeding in a southerly direction, and, on arriving at the crossing, he observed the approach of a train of cars from the west on the fifth or southern track. He stopped at a safe distance and waited until the entire train had passed. He stood at the point where the second track crossed the sidewalk. This and the first or northern track, through some unexplained neglect of the company, were used as a place of deposit for empty freight cars, eight feet in height, extending up to within three feet of the sidewalk, and thus obstructing, in a considerable degree, the eastern view of the tracks used by the trains. No other cars were in view, and there was no signal from any quarter of approaching danger. The flagman, whose duty it was to be at his post and display his flag when an engine was drawing near, or when from any cause the crossing was unsafe, did not appear to give the customary warning. It turned out, however, that, at the moment the plaintiff resumed his way, an engine unincumbered with cars was running rapidly backward from the east on the track next to that on which he had been standing. Its approach was so sudden and noiseless that, although four of the witnesses stood on the south side of the crossing, looking toward the north, and with nothing to obstruct their view, neither of them saw it until an instant before the accident. The plaintiff knew nothing of this, and his first step brought him within some four feet of the point where he was struck by the projecting fender of the engine, which, though veiled from view, must then have been within forty feet of him. At the first step he looked east, at the second west, and he was prostrated at the third. The whole affair was so instantaneous that he *Page 633 did not get to the track, but was knocked down before he reached it. After he started, less than two seconds intervened before his leg was crushed. All the witnesses swear that the engine was moving at a rapid rate of speed. All agree that the bell was not rung until after the accident.
Upon this state of facts, it is obvious that the gross negligence of the defendant's agents was the sole cause of the injury. The omission of the customary signals was an assurance by the company to the plaintiff that no engine was approaching within a quarter of a mile on either side of the crossing. On this he was entitled to rely, and to the defendant he owed no duty of further inquiry. He was not bound to be on the look-out for danger when assured by the company that the crossing was safe. The views expressed in the case of Ernst v. The HudsonRiver Railroad Company, decided at the present term, are equally controlling in this case.
The judgment should be reversed and a new trial ordered.
All the judges concurred, except DAVIES, Ch. J., who expressed no opinion.
Judgment accordingly. *Page 634